Madras High Court
K.Santhanalakshmi vs Saravanan on 15 March, 2011
Author: K.Mohan Ram
Bench: K.Mohan Ram
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 15.03.2011 C O R A M THE HONOURABLE MR.JUSTICE K.MOHAN RAM Civil Revision Petition (PD) No.3752 of 2009 K.Santhanalakshmi ... Petitioner -Vs.- 1. Saravanan 2. Sumathi 3. M.Elumalai 4. Saraswathi 5. M.Munusamy ... Respondents Prayer:- Civil Revision Petition filed under Article 227 of the Constitution of India to set-aside the order, dated 05.10.2009, passed in I.A.No.315 of 2009 in O.S.No.140 of 2009 and also direct striking off the suit in O.S.No.140 of 2009 on the file of the learned Subordinate Judge at Ranipet. For Petitioner : Mr. R.Subramaniam, Senior Counsel, for, Mrs. S.Hemalatha For Respondents : Mr. R.Karthikeyan - - - O R D E R
The fourth defendant in O.S.No.140 of 2009 on the file of the Sub Court, Ranipet, who is also the fourth respondent in I.A.No.315 of 2009, has filed the above Civil Revision Petition under Article 227 of the Constitution of India, being aggrieved by the order of exparte injunction granted therein and to struck off the plaint in O.S.No.140 of 2009.
2. The brief facts, which are necessary for the disposal of the above Civil Revision Petition, are set out below:-
Under a Registered Sale Deed, dated 01.11.1995, executed by Sallammal, Elumalai, Saravanan, Saraswathy and Sumathi, the fifth respondent herein, purchased the suit property for a valuable consideration. By a notice dated 18.11.1996 issued by the respondents 1 and 2 herein, they claimed the suit property as joint family property and they have got a share in the property and the sale deed executed on their behalf by their father Elumalai in favour of the fifth respondent herein is not legal and binding on them as they were minors on the date of execution of the sale deed and the sale deed had not been executed for the benefit of the joint family. The respondents 1 and 2 and their father Elumalai has also trespassed into the suit property and therefore it become necessary for the fifth respondent herein to file the suit in O.S.No.27 of 2000 on the file of the Sub Court, Ranipet, against his aforesaid vendors seeking declaration of his title to the suit property for delivery of possession and for mesne profits.
3. In the said suit, a written statement was filed by the third defendant, Saravanan, which was adopted by the fifth defendant, Sumathi, who are respondents 1 and 2 herein. In the said written statement, it was pleaded by them that the suit property is their ancestral property and they are having half share therein and they were minors at the time of the alleged alienation and the alienation is not for the benefit and the interest of the minors and the delivery of possession under the sale deed was disputed and they claimed to be in possession of the suit property.
4. After filing the written statement, since the defendants did not appear before the Court, they were all set exparte and the suit was decreed on 26.11.2002 and to execute the exparte decree, an Execution Petition in E.P.No.318 of 2003 was filed by the fifth respondent herein, which was subsequently renumbered as E.P.No.67 of 2004 and in that EP, delivery was ordered on 15.09.2004. After taking several adjournments and filing the counter in the Execution Petition, the respondents 1 and 2 herein alone filed an application to set-aside the exparte decree with a petition in I.A.No.339 of 2004 to condone the delay of 658 days in filing the petition to set-aside the exparte decree. The trial court allowed the said application and condoned the delay. Being aggrieved by that, the fifth respondent herein, preferred CRP No.1716 of 2005 before this Court and the same was allowed on 13.04.2007. Being aggrieved by that, the respondents 1 and 2 herein preferred a Special Leave Petition before the Apex Court and the Hon 'ble Apex Court dismissed the same on 12.11.2007.
5. In the meantime, after dismissal of the Special Leave Petition, the fifth respondent herein sold the suit property in favour of the petitioner herein under a registered sale deed, dated 28.08.2009. Thereafter, the respondents 1 and 2 herein have filed O.S.No.140 of 2009 against respondents 3 to 5 herein and the petitioner herein, seeking partition and separate possession of their share in the suit property for permanent injunction and other reliefs. Pending the suit, the respondents 1 and 2 herein also filed I.A.No.315 of 2009 seeking interim injunction. The trial court, by an order dated 05.10.2009, granted an order of exparte interim injunction, which was extended on 12.10.2009, and being aggrieved by that, the petitioner herein has preferred the above Civil Revision Petition to set-aside the said exparte order of injunction and to struck down the plaint in O.S.No.140 of 2009.
6. Heard the learned counsel on either side.
7. Mr. R.Subramaniam, learned senior counsel, for Mrs. S.Hemalatha, learned counsel appearing for the petitioner contended that the Court below has failed to follow the procedure under Order 39 Rules 1 and 2 of the CPC before granting an order of exparte interim injunction. He submitted that the Court below failed to see that the suit property was conveyed by the respondents 1 to 4 alongwith Smt.Sallammal, the mother of the third respondent, in favour of the fifth respondent, as early as on 01.11.1995 and as such the family of the plaintiffs seized to be the owners of the property from the said date and therefore the suit for partition filed in October 2009 is not maintainable. He further submitted that the fifth respondent, who had purchased the suit property under the sale deed dated 01.11.1995, filed a suit in O.S.No.27 of 2000 before the Sub Court, Ranipet, against his vendors including respondents 1 and 2 for declaration of title and for recovery of possession and the suit was decreed exparte and the decree has become final and this material fact has not been taken into consideration by the trial court, while considering the injunction application. He further submitted that the present suit filed by the respondents 1 and 2 is a clear abuse of process of Court and they are relitigating the same issue, which arose for consideration in the earlier suit in O.S.No.27 of 2000 and the decree passed in O.S.No.27 of 2000 will operate as res judicata and therefore the plaint in the present suit is liable to be struck off. He further submitted that in the written statement filed in O.S.No.27 of 2000, the respondents 1 and 2 herein have raised the same plea, namely, that they were minors at the time of execution of the sale deed in favour of the fifth respondent and there was no necessity for executing the sale deed and there was no family debts to be discharged and therefore the sale deed in favour of the fifth respondent is not binding on them and the very same plea has been raised in the present suit for partition and thus it is clear that the very same issue which was involved in the earlier suit is sought to be raised in the present suit and therefore the present suit is barred by the principles of res judicata.
8. In support of the aforesaid contentions, the learned senior counsel for the petitioner based reliance on a decision of the learned Single Judge of this Court reported in 2009-5-L.W.79 (Tamil Nadu Handloom Weavers Cooperative Society v. S.R.Ejaz). In the said decision, in paragraphs 41 and 42, the learned Judge has laid down as under:-
"41. There is no dispute with respect to the legal position that before approaching the High Court in exercise of jurisdiction under Article 227 of the Constitution of India, the parties should avail the alternative remedy. However, in a given case, if the attempt of a party to the litigation was to take undue advantage and the suit was a clear abuse of process of law and that too in a case in which the very suit itself was filed only to circumvent the order passed by the Supreme Court, this Court was not expected to be a mute spectator without taking steps to correct the jurisdictional error.
42. The remedy as provided under Order 7 Rule 11 CPC is an effective remedy to axe the civil suit at the threshold in case it satisfies the ingredients of the said provision. The trial court was given exclusive jurisdiction to decide the fate of a litigation in its initial stage itself. Therefore, the trial Court should be apprised of the inherent defects in the plaint and on such appraisal, the trial Court was obliged to consider the maintainability of the suit. It is true that the jurisdiction of the trial Court cannot be bypassed in a routine manner. Normally, the parties should be directed to pursue the statutory remedy available to them before availing the constitutional remedy. However, in extraordinary circumstances, when it was demonstrated that there was flagrant violation of the principles of law, or abuse of process of Court or the lower Court was accused of derliction of duty of grave nature, the parties would be entitled to invoke the jurisdiction under Article 227 of the Constitution of India.
9. Countering the said submissions, Mr. R.Karthikeyan, learned counsel for the respondents submitted that since the rights of the respondents 1 and 2, who were admittedly minors on the date of execution of the sale deed on 01.11.1995 had not been gone into and adjudicated on merits in the earlier suit, it is just and necessary that the said issue should be allowed to be agitated and adjudicated on merits in the present suit, as otherwise, the valuable right of the respondents 1 and 2 herein will be defeated. He further submitted that the Civil Revision Petition is mainly directed against the exparte order of injunction granted by the trial court and in this revision it is not open to the petitioner to seek the striking off of the plaint in the suit. He further submitted that it is open to the petitioner to file a petition under Order 7 Rule 11 of the CPC before the trial court seeking to reject the plaint, but instead of availing the alternative remedy available to the petitioner, the petitioner is seeking striking off of the plaint in the Civil Revision Petition, which is not permissible in law.
10. I have considered the rival submissions made by the learned counsel on either side and perused the materials available on record.
11. In the light of the rival contentions made, it has to be seen as to whether in earlier suit, O.S.No.27 of 2000, and in the present suit, O.S.No.140 of 2009, the same issue is being raised. Having executed the sale deed dated 01.11.1995 in favour of the fifth respondent herein in respect of the suit property, since the vendors, mainly the respondents 1 and 2 herein, questioned the title of the fifth respondent herein and trespassed into the suit property, it became necessary for the fifth respondent to file the earlier suit, O.S.No.27 of 2000, seeking declaration of his title to the suit property and for recovery of possession. In the said suit, as stated above, the respondents 1 and 2 herein filed their written statement raising a plea that the sale deed in favour of the fifth respondent is not valid and binding on them since they were minors on the date of execution of the sale deed and there was no family necessity or family debt to be discharged on the date of execution of the sale deed. Hence from the pleadings in the said suit, it is clear that the main issue that arose for consideration was as to whether the suit property was the joint family property, as contended by respondents 1 and 2 herein or is a self-acquired property of the father of Elumalai, namely, Madurai Pandithar and whether there was family necessity or family debt, which necessitated the sale of the suit property and whether the sale deed is binding on respondents 1 and 2 herein. In the present suit filed in O.S.No.140 of 2009 the very same pleadings have been made and therefore the very same issue arise for consideration in the present suit. Thus it is clear that the same issue that arises for consideration in the present suit was directly and substantially in issue in the earlier suit.
12. Admittedly, an exparte decree had been passed in O.S.No.27 of 2000 and the petition filed by the respondents 1 and 2 herein to condone the delay in filing the petition to setaside the exparte decree was originally allowed by the trial court, but the same was set-aside by the High Court and it was confirmed by the Apex Court and therefore the exparte decree passed in O.S.No.27 of 2000 had become final. It is the settled proposition of law that a party is as much bound by an exparte decree as by a contested one, as has been laid down by the Apex Court in the decision reported in 1989 Supp (2) Supreme Court Cases 627 (PANDURANG R. MANDLIK v. SHANTIBAI R.GHATGE). In the said decision, it has been laid down as follows:-
"19. Admittedly the appellants' application was decided ex parte. It is true that ex parte decrees operate to render the matter decided res judicata, and the defendants' failure to appear will not deprive the plaintiff of the benefit of his decree. But in the case of a suit in which a decree is passed ex parte, the only matter that can be 'directly and substantially in issue' is the matter in respect of which relief has been claimed by the plaintiff in the plaint. ...."
13. Therefore, I am of the considered view that the exparte decree passed in O.S.No.27 of 2000 will operate as res judicata in the present suit. As rightly contended by the learned senior counsel for the petitioner, this aspect ought to have been considered by the trial court, while considering the injunction application, but unfortunately the trial court was not considered the effect of the exparte decree passed in O.S.No.27 of 2000. Further, as has been laid down by the learned Single Judge, in the above referred to decision, the trial court ought to have considered, whether in the light of the pleadings contained in the plaint itself, there was possibility of decreeing the suit and this exercise has also not been done by the trial court. Further, it has to be pointed out that if the trial court had considered the pleadings in the present suit and considered the effect of the earlier exparte decree passed in O.S.No.27 of 2000, the trial court could have easily seen that the present suit is a clear abuse of process of Court and the respondents 1 and 2 herein are relitigating the same issue which felt for consideration in the earlier suit and on that ground the trial court ought to have even rejected the plaint, but instead has ordered exparte order of interim injunction that too without following the procedure contemplated under Order 39 Rules 1 and 2 of the CPC.
14. The main contention of the learned counsel for respondents 1 and 2 herein, as pointed out above, is that since respondents 1 and 2 were minors on the date of execution of the sale deed, dated 01.11.1995, in favour of the fifth respondent and the binding nature of the sale deed had not been gone into on merits in the earlier suit, the said issue should be gone into in the present suit and therefore it cannot be said that the present suit is hit by resjudicata. I am unable to countenance the said contention for the reasons stated supra. It has to be pointed out that these aspects could have been urged before this Court in the Civil Revision Petition filed against the allowing of the condonation of delay petition and before the Hon 'ble Apex Court in the Special Leave Petition and it is not clear whether the said facts were argued before the Courts and the fact that both the High Court and the Apex Court were not inclined to condone the delay in filing the petition to setaside the exparte decree shows that there is no merit in the contention of the learned counsel for respondents 1 and 2.
15. For the aforesaid reasons, this Court is unable to countenance the contentions of the learned counsel for respondents 1 and 2. For the reasons stated above, the Civil Revision Petition is allowed and the order, dated 05.10.2009, passed in I.A.No.315 of 2009 in O.S.No.140 of 2009, is set-aside and the plaint in O.S.No.140 of 2009 on the file of the learned Subordinate Judge, Ranipet, is struck off from the file. No costs.
srk